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State Vs. Rehman - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Appeal No. 154 of 1956
Judge
Reported inAIR1958Raj296; 1958CriLJ1350
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 165; Central Excise Act, 1944 - Sections 18; Indian Penal Code (IPC), 1860 - Sections 353
AppellantState
RespondentRehman
Appellant Advocate B.C. Chatterjee, Adv.
Respondent Advocate D.K. Soral, Adv.
DispositionAppeal dismissed
Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect -..........sent to the magis-trate empowered to take cognisance of the offence and the owner or occupier of place searched shall on application be furnished with a copy of the same by the magistrate. rule 201 which confers the power to search any place also lays down that the officer must have reason to believe that excisablegoods are processed, sorted, stored, etc., in contravention of the act or the rules. the applicability of the provisions of the criminal procedure code having been made by section 18 of the central excises and salt act brings in the further requirement of stating the grounds of the belief and the specification of the article to be searched to be recorded in writing. if the provisions of law are not so construed, section 18 of the central excises and salt act would become.....
Judgment:

K.L. Bapna, J.

1. This is an appeal by the State against the order of acquittal of Rehman respondent on a charge under Section 353 of the Indian Penal Code by the Munsiff-Magistrate, Hindaun by order of 4th of August, 1956.

2. The case for the prosecution is that Mr. Sri Kishen Ahlawalia Deputy Superintendent of Central Excise having head-quarters at Bharatpur went on 7th of September, 1953 to village Kot. He received information that Sullad and his son Rehman had cultivated tobacco but had not paid the excise duty thereon. On 9th of September, (1953, he decided to go to the house of Rehman and after 2 P. M. went to his house and asked him to show his tobacco.

Rehman replied that he had some tobacco with him but he would not show it. Shri Ahluwalia Deputy Superintendent was accompanied by Mr. Nand Kishore Maheshwari, Inspector Central Excise, Ramchand Sepoy, Nopa Chokidar and two-Motbirs Kapurchand and Phulchand. Shri Ahlu-walia decided to take the search of the house of Rehman, but Dhamman and Rehman obstructed the making of the search and pushed aside Ram- chand and Shri Ahluwalia. Shri Ahluwalia fell down and as a result received two injuries, one abrasion and the other a contused wound on his leg. A report was made at the Police Station, Mahuwa on the same day at 6 P. M.

3. Rehman and Dhamman were prosecuted. Dhamman was discharged and Rehman was convicted under Section 353, I. P. C. and sentenced to undergo three months rigorous imprisonment by the learned Munsif-Magistrate, Hindaun on 2nd of June, 1953. On appeal the learned Additional Sessions Judge was of opinion that the search had not been proved to have been made in accordance with the provisions of Section 165, Criminal Procedure Code which were applicable in view of Section 18 of the Central Excises and Salt Act (No. 1 of 1944).

It was pointed out that there was no evidence to show that the officer had recorded his reasons in writing before attempting to search the place. He set aside the conviction and remanded the case for a fresh enquiry. After remand a document Ex. P-5 was produced by Shri Ahluwalia as a record of the reasons before the search was attempted and he was recalled for examination. The learned Magistrate did not accept this document to have been drawn up before search and held that the provision of Section 165, Criminal Procedure Code had not been complied with. He accordingly acquitted the accused by his judgment dated 4th of August, 1956.

4. This appeal has been filed on behalf of the State and the first ground argued was that it was not obligatory on the excise officers to record reasons before attempting to make a search. It was argued that the powers to make a search were conferred by Central Excises and Salt Act (No. 1 of 1944) and rules thereunder and as this was a special Act, the restrictions mentioned in Section 165, Criminal Procedure Code were not applicable.

5. The relevant provisions were carefully considered. Section 18 of Act No. 1 of 1944 is to the effect that 'all searches made under this Act or any rules made thereunder and all arrests made under this Act shall be carried out in accordance with the provisions of the Criminal Procedure Code, 1898 (No. 5 of 1898) relating respectively to searches and arrests made under that Code.' Section 37 enables the Central Government to make rules among other things for authorising and regulating inspection of factories and to provide for the taking of samples and for the making of tests of any substance produced therein and for the in-spection or search of any place or conveyance used for the production, storage, sale or transport of salt and so far as such inspection and search it essential for the proper levy and collection of the duties imposed by the Act oi sny excisable goods.

Rule 201 authorises the Central Government to empower any officers of the department under its control to enter and search at any time by day or by night any land, building, enclosed place, premises, vessel, conveyance or other place open or in which he has reason to believe that excisable goods, salt petre or splints or veneers for the manufacture of matches are processed, sorted, stored, manufactured or carried in contravention of the provisions of the Act or these rules and in case of resistance break open any door and remove any other obstacle to his entry upon or into and search of such land, building, enclosed place, premises, vessel, conveyance, or other place, Rule 202 empowers the Officer to require any person who has the immediate possession, control or use of any land, building, enclosed place, premises, vessel, conveyance or ether place which he desires to search under these rules or of any excisable goods to open or allow access to inspect or examine such place or conveyance.

Sub-clause 2 says that if such person fails to comply with any of such requirement such officer may cause anything to be done which he may deem necessary in order to exercise his powers under these rules in a proper manner and the cost incurred in this behalf unless paid to such officer shall be recoverable from the said person as an arrear of land revenue. The Central Excise Manual at page 259 says that an officer not inferior in rank to an Inspector is authorised to exercise powers with reference to Rr. 201 and 202.

6. It is evident from the perusal of these rules and notification that Shri Ahluwalia was authorised to demand access to a place supposed to contain excisable goods (tobacco being one of them). The effect of Section 18 is however to make the provisions of the Criminal Procedure Code relating to search applicable. The provisions of the Code in relation to searches are to be found firstly in Sections 96 to 99 and 101 to 105,

These provisions are applicable when the search is made Tinder orders or direction of a Court. The other provisions in respect of search are contained in Sections 165 and 166 of the Code when the search is to be made by an officer in charge of the police station. The provisions of Chapter VII are not directly applicable because the search is not made under any instructions of a Magistrate.

The excise officers are empowered in their own right to make a search and that power would be analogous to that of a police officer empower-ed to search himself. By virtue of Section 18 of the Central Excises and Salt Act, Section 165 of the Code-authorising a police officer to make a search after-certain formalities, becomes applicable. The im-portant steps to be taken under Section 165 of the Cr. P. Code are :

1. As mentioned in Sub-clause (1) that the officer must have reasonable grounds for believing that anything necessary for the purpose of an investigation in hand may be found in any place within the limits of his jurisdiction and that such thing cannot, in his opinion, be otherewise obtained without undue delay.

2. The officer is required to record in writing the grounds of his belief and to specify in such writing so far as possible the thing for which search is to be made.

3. He can thereafter search or cause search to be made within the limits of his jurisdiction. The section also lays down that the officer proceeding under the provisions of Sub-clause (1) shall if practicable conduct the search in person. Another direction is contained in Sub-clause (4) that the provisions contained in Sections 102 and 103 become applicable. It is not necessary to refer to provisions-in Section 102 and Section 103 for in the present case their compliance has not been challenged.

The final direction in Section 165 is that copies of the record of search shall be sent to the Magis-trate empowered to take cognisance of the offence and the owner or occupier of place searched shall on application be furnished with a copy of the same by the Magistrate. Rule 201 which confers the power to search any place also lays down that the officer must have reason to believe that excisablegoods are processed, sorted, stored, etc., in contravention of the Act or the Rules.

The applicability of the provisions of the Criminal Procedure Code having been made by section 18 of the Central Excises and Salt Act brings in the further requirement of stating the grounds of the belief and the specification of the article to be searched to be recorded in writing. If the provisions of law are not so construed, Section 18 of the Central Excises and Salt Act would become nugatory.

7. We have, therefore, to see whether theofficer had recorded his reasons before proceeding to make the search. The only evidence in this regard is of Shri Kishen Ahluwalia after remand when he was recalled. He said that he came to know from the Gasht Girdawari of the Patwari that the accused had cultivated tobacco. He wanted to see the stock of tobacco in order to find out whether the assessment was correctly made or not. The accused Rehman declined to show the stockof the tobacco whereupon he decided to make a search. Before making the search, he recorded the reasons in writing and this record was Ex. P-5 produced in Court after remand. This document is as follows :

'Whereas it is necessary to verify the produce of Shri Hasna s/o Brikhban and of Rehman s/o Sullad in order to be definite about the correct assessment of the grower-curers and since thesepersons have refused to get their tobacco examined, I hereby decide to make an entry into their pre-mises and search for the tobacco reported to be lying therein. Shri Phoolchand and Kapoorchandhave been summoned for this purpose. I also intend to seize the recovered goods for breach ofC. E. Rules 1944.

Recorded by me.

Sd/- K. Ahluwalia

9-9-56

Dy. Supdt.

This document complies with the requirements of law and the statement of Shri Krishen Ahluwalia purports to prove it. The previous statement of Shri Ahluwalia and the statements of other witnesses, however, give a different version and the execution of this document at the proper time cannot be held to have been satisfactorily proved.

8-12. (After discussing the evidence of some of the P. Ws. the judgment proceeds :) All these witnesses produced in support of the prosecution case, therefore, stated events in the order in which they happened but omitted the fact of the Deputy Superintendent taking out his pen and paper and jotting down the reasons for which the search was required to be made. In the circumstances the Magistrate was not wrong in coming to the conclusion that the recording of reasons before proceeding to take a search as required by Section 165had not been satisfactorily proved to have been complied with.

It may be mentioned that the Deputy Superin-dent maintains a diary of the events and it was conceded by the learned Assistant Government Advocate that the fact of recording of reasons is not mentioned therein. It may be that that kind of document is only a sort of summary of the day's work and may not contain any detail of what might take place in respect of each individual tax-payer but on the evidence as it stands it must be held that it has not been proved to the satisfaction of this Court that the reasons were recorded before the excise officers proceeded to take the search. In this view the search attempted to be taken was not in accordance with law and if the accused resisted the search no offence had been committed. The accused has been rightly acquitted.

13. This appeal has got no force and is accordingly dismissed.


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